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2016 DIGILAW 519 (KAR)

S. MAHADEVASWAMY v. STATE OF KARNATAKA

2016-07-05

B.SREENIVASE GOWDA, JAYANT PATEL

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ORDER : JAYANT PATEL, J. 1. The present petition is directed against the order dated 7-4-2016 passed by the Tribunal whereby the Tribunal for the reasons recorded in the order has dismissed the petition. 2. We have heard Mr. B.B. Bajantri, learned Counsel appearing for the petitioner. 3. The contention raised on behalf of the petitioner was that when the petitioner was acquitted by the Criminal Court, departmental enquiry could not have been initiated without considering the judgment of Criminal Court and the factum of acquittal. It was further contended that there was delay in initiation of the departmental enquiry and therefore, also the action would be bad in law. Third contention raised by the learned Counsel for the petitioner was that there is non-compliance of Section 12(4) of Karnataka Lokayukta Act, 1984 while issuing the Government Order dated 5-5-2012. He submitted that there is no proper application of mind on the part of the Government and therefore, the action of initiation of the departmental enquiry is bad in law. 4. We may at the outset record that in the criminal case against the petitioner the charge was under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The allegation was of demanding and accepting illegal gratification of Rs. 1,000/- from the complainant. In a trap, the petitioner was found involved red handed and ultimately the charge-sheet was filed and the case was conducted before the Special Court. It is true that acquittal has been granted and thereafter action has been taken for initiation of the departmental enquiry. 5. In our view, when the incident is directly relatable to discharge of the duty by the employee concerned, that too for the offence under the Prevention of Corruption Act, 1988 even if the Criminal Court has granted acquittal, it cannot be said that the departmental proceedings cannot be initiated. Further the factum of acquittal is one thing but while taking decision for initiation of departmental enquiry, the Authority cannot sit over the judgment of the Criminal Court nor can say that there is no proper appreciation of the evidence by the Court. Further the factum of acquittal is one thing but while taking decision for initiation of departmental enquiry, the Authority cannot sit over the judgment of the Criminal Court nor can say that there is no proper appreciation of the evidence by the Court. Further the standard of proof and the yardstick in the departmental proceedings would be different in comparison to a criminal case where the requirement is proof beyond reasonable doubt and the result is that in the disciplinary proceedings if proved one may be removed from service, whereas in the criminal case, if proved, sentence may be imposed upon him. 6. It is by now well-settled that mere acquittal by the Criminal Court or registration and proceedings of criminal case, is no bar to the initiation of the departmental enquiry. Considering the seriousness of the charge, we find that even if the Criminal Court has acquitted, the bar should not be allowed to operate against initiation of the departmental enquiry or the disciplinary proceedings. 7. Learned Counsel for the petitioner relied upon the decision of the Apex Court in the case of Union of India and Others v. Naman Singh Shekhawat, (2008) 4 SCC 1 , wherein the facts were that the offence was registered against the Sub-Inspector of Intelligence under the Customs Act, 1962. The Apex Court did consider certain aspects for the conduct of the employee, but, in our view the offence under the Prevention of Corruption Act would stand altogether on a different footing for initiation of the departmental enquiry after the judgment of the Criminal Court. We find that in view of the peculiar facts and circumstances of the present case, the said decision is of no help to the learned Counsel for the petitioner. 8. Another decision relied upon by the learned Counsel for the petitioner was the judgment of the Apex Court in the case of Gurpal Singh v. High Court of Judicature of Rajasthan, (2012) 13 SCC 94 . The offence was not at all pertaining to the discharge of duty by the employee concerned, but the facts were that the petitioner was selected as a Assistant Public Prosecutor and in respect of other offence not relatable to discharge of the duties a criminal case was initiated. Hence, we do not find that the said decision would be of no help to the learned Counsel for the petitioner. 9. Hence, we do not find that the said decision would be of no help to the learned Counsel for the petitioner. 9. In the decision of Joginder Singh v. Union Territory of Chandigarh and Others, (2015) 2 SCC 377 , more or less similar facts which were considered by the Apex Court as that of Gurpal Singh's case (supra), inasmuch as the appellant/petitioner was declared as a successful candidate for the employment but upon verification of the antecedent, it was found that he was involved in some other criminal case. In any case, the criminal case or the incident which was subject-matter of the criminal case was not pertaining to the discharge of duty by the employee concerned. Hence, the said decision would be of no help to the learned Counsel for the petitioner. 10. On the ground of delay, it is true that the incident is of January 2007, but at the same time, the fact remains that initiation of the enquiry is in 2012 and the judgment of the Criminal Court is dated 16-6-2011. Considering the said peculiar aspect of the matter, that the case was pending before the Criminal Court and it was concluded on 16-6-2011 and thereafter the departmental proceedings are initiated on 5-5-2012, it cannot be said that the delay would be fatal to the disciplinary proceedings initiated by the Department. 11. On the ground of non-compliance of Section 12(4) of the Karnataka Lokayukta Act, we may record that the Tribunal, in the impugned order, at paragraph 7 has observed thus: "7. The third ground urged on behalf of the appellant is that there is non-compliance of Section 12(4) of the Lokayukta Act while issuing the impugned Government order dated 5-5-2012. It is contended on behalf of the applicant that the first respondent has relied on a report dated 15-3-2012 received from the Director, Department of Prosecution and Government Litigations and passed the impugned order dated 5-5-2012 without independent examination of the report sent by Upa-lokayukta under Section 12(3) of the Karnataka Lokayukta Act. It is no doubt true that in the order dated 5-5-2012 there is a reference to the report dated 15-3-2012 received from the Director, Department of Prosecutions and Government Litigations, but in the last para of the preamble to the said order it is stated that the Government after meticulously examining the case decided to initiate departmental enquiry against the applicant. The exercise conducted by the first respondent in this regard is evident from paras 7 to 10 of the Note Sheet in File No. VERNACULAR MATTER 56 VERNACULAR MATTER 2012 produced by the applicant at Annexure-A8 in this case. Hence, it cannot be said that the first respondent has not examined the recommendation by Upa-lokayukta as required under Section 12(4) of the Lokayukta Act. Reliance placed on behalf of the applicant on the decision of the Tribunal in Application No. 725 of 2014 (H.N. Niranjan v. State of Karnataka and Others, decided on 27-11-2014), cannot help the applicant in this case for the reason that in the said case the Government Order nowhere indicated that the Government have examined the report sent under Section 12(3) of the Karnataka Lokayukta Act. In the said case, it had been stated in the Government Order that as recommended by Hon'ble Upa-lokayukta, it has been decided to hold the disciplinary proceedings and to entrust the same to Upa-lokayukta concerned." 12. We do not find that the aforesaid view taken by the Tribunal can be said to be erroneous which may call for interference. 13. We may record that the challenge is to initiation of departmental proceedings and holding of enquiry. The enquiry is yet to be held, during which petitioner will have a liberty to meet with the charges levelled against him by observance of principles of natural justice. Therefore, it would bean additional ground not to interfere with the action for initiation of the department enquiry. 14. In view of the above, read with the reasons recorded by the Tribunal, we do not find any case made out for interference. Hence, petition is meritless. Petition is dismissed.